STATE OF MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES BUREAU OF HEARINGS. Agency No.

Transcription

1 STATE OF MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES BUREAU OF HEARINGS In the matter of Sharon A. Jones, Petitioner v State Employees Retirement System, Respondent / Docket No Agency No. Agency: Case Type: Appeal Disability Department of Management & Budget Issued and entered this 21st day of December 2000 by Edward F. Rodgers Administrative Law Judge PROPOSAL FOR DECISION PROCEDURAL HISTORY This matter commenced with the filing of a Request for Hearing on May 26, Following the receipt of that request, the Bureau of Hearings, on June 5, 2000, issued a Notice of Hearing. The Notice of Hearing scheduled a contested case hearing to commence on August 9, On July 11, 2000, Mr. Douglas G. Kirk, Attorney at Law, filed, on behalf of the Petitioner herein, Sharon A. Jones, a request to adjourn the August 9, 2000, hearing date. On July 13, 2000, Mr. Stephen M. Rideout, Assistant Attorney General, on behalf of the Respondent herein, State Employees Retirement System, filed a response to the request for adjournment. Mr. Rideout indicated that Respondent had no objection to the

2 Page 2 adjournment. On July 14, 2000, the Presiding Judge issued and entered an Order Granting Adjournment, rescheduling the matter for August 29, On July 20, 2000, Mr. Rideout filed an Appearance on behalf of the State Employees Retirement System. On August 29, 2000, the hearing commenced as scheduled. Mr. Kirk appeared on behalf of Petitioner and Mr. Rideout appeared on behalf of Respondent. At the contested case hearing, the Petitioner testified on her own behalf. In addition, Petitioner Exhibit 1 was accepted into the record. Petitioner Exhibit 1 is a Michigan Orthopedic Surgery and Rehabilitation Evaluation dated August 8, On December 1, 2000, Petitioner Exhibit 2 was received. The Respondent called no witnesses during the hearing but introduced into the record Respondent Exhibit A. Respondent Exhibit A is the file from the Office of Retirement Services. This voluminous file contains many documents, including the following: 1. Application for Disability Retirement, 2. Accident Reports, 3. Michigan Department of Transportation Response and Position Description, 4. Accident Fund Materials, 5. Position Statements and Medical Documentation, and 6. Miscellaneous Correspondence. Following the close of the hearing on August 29, 2000, it was agreed that a second report would be received from Dr. Milcu, M.D. This report is in effect Petitioner Exhibit 1.

3 Page 3 In addition, a briefing schedule was agreed to by the parties. The transcript was completed and received by the parties on or about October 2, The Respondent filed its closing statement on October 31, On November 29, 2000, the Petitioner s brief supporting her claim was filed. ISSUES AND APPLICABLE LAW The general issue in this matter is whether Petitioner is disabled and entitled to a duty disability retirement. The specific issue in this case is whether the Petitioner qualifies for a duty disability retirement under the State Employees Retirement Act, 1943 P.A. 240, as amended, being MCL 38.1; MSA 3.981(1) et. seq. (Act). In pertinent part, Petitioner requests a duty disability retirement under Section 21 of the Act, being MCL 38.21; MSA 3.981(2). Section 21 states in pertinent part: Sec 21. Subject to the provisions of sections 33 and 34, upon the application of a member, or his department head, or the state personnel director, a member who becomes totally incapacitated for duty in the service of the state of Michigan without willful negligence on his part, by reason of a personal injury or disease, which the retirement board finds to have occurred as the natural and proximate result of the said member s actual performance of duty in the service of the state, shall be retired: Provided, The medical advisor after a medical examination of said member shall certify in writing that said member is mentally or physically totally incapacitated for the further performance of duty in the service of the state, and that such incapacity will probably be permanent, and that said member should be retired: And provided further, That the retirement board concurs in the recommendation of the medical advisor. FINDINGS OF FACT

4 Page 4 Based upon the entire record of this matter, including the testimony of Ms. Jones, Respondent Exhibit A, Petitioner Exhibit 1 and 2, and the pleadings in this matter, the following findings of fact were established: 1. Petitioner s date of birth is January 18, Thus, Petitioner will be 43 years old in January See the Transcript (TR) from August 29, 2000, at page (p) Petitioner indicated that she has been a State Employee since January 20, 1980, with the Michigan Department of Transportation (MDOT). See the TR at p Petitioner held various positions within MDOT. See the TR at p On July 22, 1994, while working on Interstate Highway 94 in Michigan, Petitioner hurt her back and neck. See the TR at p The July 22, 1994, injury put Petitioner out of work for a period of about two and-a-half years. She received worker s compensation from that accident. She was treated during this time period by different doctors, including Dr. Milcu and Dr. Krinock. See the TR at p The Petitioner testified that she previously applied for a duty disability pension; and, just before the hearing, was told they could accommodate her in a position within MDOT. This was in approximately She was offered a position in the barn or maintenance garage. See the TR at p Petitioner indicated the position she was placed in was the lowest paid position in the garage and that she worked her way up to the highest paid position without

5 Page 5 going into management. See the TR at p Petitioner was placed in a position with a 35 pound weight restriction; but, there were difficulties with this job, and the Petitioner ultimately hurt her back again and also injured her right elbow. See the TR at p Petitioner last worked in November 19, She has been receiving worker s compensation since that date. See the TR at p Petitioner has been working with the Michigan Rehabilitation Services and a specialist named Mr. Dennis Mahoney. She indicated Mr. Mahoney has been unable to find full time jobs for her with the state of Michigan. She has worked some part-time jobs. Petitioner also testified that she is on a 5 pound weight restriction due to the various injuries that she has to her neck, back, and elbow. See the TR at p In June 1999, the Petitioner applied for a duty disability retirement. See Respondent Exhibit A, Section MDOT determined that Ms. Jones was injured on September 29, According to the accident report filed with the Department, Petitioner was placing a garbage bag in the back of the pickup truck when she struck her elbow on the side of the truck bed and injured her right arm/elbow. Before this injury, Ms. Jones was working with medical restrictions from a previous injury. Those restrictions were for no lifting greater than 35 pounds and no repetitive bending or twisting. In addition, MDOT determined that, since Petitioner had been off work, she had developed a bilateral epicondylitis with a current medical restriction of no lifting more than 5 pounds with left arm and no repetitive motion of left elbow. See

6 Page 6 Exhibit A, Section On February 24, 2000, the Office of Retirement Services (ORS) denied Petitioner s application for a duty disability retirement. See Exhibit A, Section On October 5, 1999, Dr. Richard A. Ilka, M.D., performed an examination and review of Petitioner s medical records. See Exhibit A, Section Dr. Ilka, after his review on October 5, 1999, found that Petitioner could return to work because her condition was not totally disabling. See Exhibit A, Section On August 15, 2000, Dr. Ilka wrote to the accident fund of Michigan, the administrator of the state of Michigan s worker s compensation coverage. In his letter, Dr. Ilka recommended that Petitioner be referred to hand surgery specialists for further evaluation and consideration of decompression surgery. See Petitioner Exhibit 2, which contains Dr. Ilka s letter, along with a July 26, 2000, evaluation. 17. Dr. Ilka clearly indicated that Petitioner s disability occurred by reason of a personal injury as the natural an proximate result of her performance on duty. See Exhibit A, Section Dr. Ilka found in effect that all of Petitioner s injuries (her back, neck, and elbow) are injuries that are work related. See Exhibit A, Sections 5.133, 5.135, 5.141, and Dr. Ilka, in his July 26, 2000, evaluation, indicates that Petitioner has pain in her neck and back; but, on any given day, there is no pattern to establish a site of the worst symptoms. He also indicated that on July 26, 2000, he was evaluating both her elbows. See

7 Page 7 Petitioner Exhibit Petitioner s back, neck, and elbow injuries occurred as the natural and proximate result of her actual performance of her duties at MDOT. See Dr. Ilka s reports dated July 26, 2000, and August 15, 2000, which are contained in Petitioner s Exhibit On November 16, 1999, MDOT wrote to ORS. In pertinent part, this letter stated, We are attempting to return Ms. Jones to employment whether it be state service or private industry and have a Vocational Rehabilitation Specialist involved to assist us in this attempt. See Exhibit A, Section During the contested case hearing, Petitioner testified that the Rehabilitation Specialist has been unable to find her a full-time job. See the TR at p Petitioner also testified that, with the 5 pound weight restriction on her elbows and the 35 pound restriction because of her back and neck, there were no state jobs that she had either the training or the physical ability to perform. See the TR at p. 22. CONCLUSIONS OF LAW The principles that govern judicial proceedings also apply to administrative hearings, 8 Callaghan s Michigan Pleading and Practice, (2d ed), Section 60.48, p The burden of proof is upon the Petitioner to prove, by a preponderance of the evidence, that she is (1) disabled, and (2) entitled to a duty disability. The record as a whole in this matter has established by a preponderance of the evidence the following conclusions of law: 1. The standard to be applied in this matter is whether, The Plaintiff is

8 Page 8 unable to engage in employment reasonably related to Plaintiff s past experience and training. See Knauss v State Employees Retirement System, 143 Mich App 644; 372 N.W. 2d (1985). 2. In Knauss, the Court concluded that, this court allowed the plaintiff to recover total-disability benefits because the plaintiff was only trained to perform his occupation as an auto mechanic. We are of the opinion that a similar standard should also be applied to state-employee disability benefits. See Knauss at p The evidence in this matter establishes that Ms. Jones can no longer perform her prior duties as a result of the neck, back, and elbow injuries. The record contains no evidence that the Petitioner has the skill, training, or background applicable to another occupation or job. 4. In short, as argued by Petitioner in her post-hearing brief, there is no evidence of any job for the state that the Petitioner has the skill, training, background, or physical capability to perform. 5. As indicated above, the record contains numerous and substantial evidence that Petitioner s back, neck, and elbow injuries are job related. Clearly, her disabilities are related to her duties in the Michigan Department of Transportation. 6. Dr. Ilka clearly indicates that Petitioner s disability did occur by reason of a personal injury as the natural and proximate result of Petitioner s performance of duty. See Exhibit A, Section These same findings were confirmed by Dr. Ilka on another date. See

9 Page 9 Exhibit A, Section The state in effect concedes the issue of duty disability in its post-hearing brief. In pertinent part, it acknowledges, Dr. Ilka s findings are the same as those of other physicians who have seen and/or treated Petitioner through the years. All have indicated that even though she has some impairment, she is not totally disabled from employment. See p. 4 of Respondent s Post-Hearing Brief. 9. The record as a whole in this matter establishes, by a preponderance of the evidence, that the neck, back, and elbow injuries suffered by the Petitioner are duty related. Clearly, the disabilities arose out of Petitioner s duties as an employee of MDOT. 10. In this matter, all of the Petitioner s experience and training are in her various positions within MDOT. These are positions in which she can no longer perform her duties because of her work-related injuries. Clearly, she meets the standard articulated in Knauss. See Knauss at p Thus, it is found and concluded on this record, by a preponderance of the evidence, that the Petitioner should receive a duty disability retirement.

10 Page 10 PROPOSED DECISION Based upon the Findings of Fact and the Conclusions of Law, the undersigned Administrative Law Judge proposes that the Petitioner s request for a duty disability retirement be GRANTED. EXCEPTIONS Parties may file exceptions to this Proposal for Decision within 20 days after the Proposal for Decision is issued and entered. A response to the exception may be filed within 15 days after the exceptions are received. Any such exceptions or responses should be filed with the Department of Management and Budget, Office of Retirement Services, 7150 Harris Drive, 3 rd Floor, P.O. Box 30171, Lansing, MI 48909, Attention: Janet Darling. Edward F. Rodgers Administrative Law Judge